Tirloknath Tewari vs Ram Ran Bijay Prasad Singh

Das, J.—These two appeals arise out of the same judgment, and have been beard together. One of the appeals, namely, S.A. No. 52 of 1945 is by the defendant, and the other appeal, S.A. No. 59 of 1945 is by the plaintiff. The main questions, which arise for decision in the two appeals, are (a) the rent payable by the defendant in the years in suit in respect of the lands in question, and (b) cess payable for the same. The two appeals arise out of a suit for recovery of rent and cess for the period 1346 to eight annas kist of 1350 Fasli. The plaintiff is the sixteen annas proprietor of the village in which the defendant holds 149 bighas 18 kathas and 8 dhurs of lands. The lands are in two blocks, one of 70 bighas, and the other of 79 bighas odd. The quality of the soil of the two blocks is not the same; one of the blocks is of inferior quality and the other of superior quality. The admitted position is that rent payable for the superior quality block is Rs. 5-3-6 per bigha and that for the inferior quality block is Rs. 2 per bigha. It is further admitted that the defendant has to pay rent for the area actually cultivated in a particular year. There was a dispute in the trial Court as to the particular areas which were cultivated in the years in suit. The learned Munsif accepted as correct the areas of cultivable land as given in the plaint in the years in suit. This finding has not been disturbed in appeal, and learned Counsel for the defendant-appellant has not raised this question before us. It must, therefore, be taken that no question as to the areas of land cultivated in the years in suit arises now. There was, however, a dispute between the parties if the areas cultivated in the years in suit appertained to the superior quality block or the inferior quality block. The finding of the learned Munsif was that the lands so cultivated belonged to the inferior quality block and rent was payable at the rate of Rs. 2 per bigha. The Court of appeal, however, has reversed this finding and has held that the lands cultivated in the years in suit appertained to the superior quality block and rent was payable at Rs. 5-3-6 per bigha. The defendant-appellant is aggrieved by this decision and one of the points in the appeal preferred by the defendant-appellant relates to this question.

As to cess, the plaintiff claimed cess at Rs. 38-15-9 a year. The defendant-appellant con tended that cess was payable by him as a cultivating raiyat at six pies per rupee of the rent realizable for a particular year. The learned Munsif accepted the contention of the defendant and passed a decree accordingly. The Court of appeal below has reversed the decision of the learned Munsif and has held that cess is payable at Rs. 35-13-0 a year minus half anna per rupee on the amount of rent realizable in each year. Both the parties are aggrieved by this decision of the Court of appeal below on the question of cess, the defendant contending that cess is payable only at the rate of six pies per rupee of the rent realizable for a particular year, and the plaintiff contending that cess is payable at Rs. 38-15-9 a year. The appeal of the plaintiff is, therefore, confined to the question of cess only, whereas the appeal of the defendant raises both the questions,'' namely, of rent as well as cess. (After discussing the question of rent and holding that it turned on a question of fact as to which there was no sufficient reason for disturbing the finding of the lower appellate Court, the judgment proceeded.)

The question of cess, however, presents greater difficulties. The tenancy appears to have been created by a patta (EX.E) of the year 1308 Fasli. The rent payable for the lands is not lump rental, but is fixed at a rate per bigha, and would vary from year to year according to the area cultivated in a particular year. Learned Counsel for the defendant appellant has placed reliance on two judgments (EXS. 3 and B) and also on the decree (Ex. c). The judgment (Ex. 3 ) and the decree (EX. c) no doubt show that the defendant was held to be an occupancy raiyat in respect of the lands in question. The judgment (Ex. 3) further shows that the rate of rent per bigha, in accordance with the stipulations of the patta of 1308, is payable in respect of only the culturable lands found on measurement every year. The judgment (Ex. B) shows that in a rent suit of 1921 cess was allowed at six pies per rupee on the annual rent paid per year. The question of the status of the defendant under the Cess Act was not, however, in issue in that suit and there was no discussion of the question in the judgment. The plaintiff, on the contrary, relies very strongly on the schedule of valuation prepared by the Cess Revaluation Officer, subsequent to the aforesaid judgments. This document is exhibit 2 in the record, and shows the defendant as a tenure-holder for the purpose of the Cess Act, and the annual valuation of the entire holding is shown at the sum of Rs. 886-6-0. The contention of the plaintiff is that the defendant must pay cess as a tenure-holder, that is, at the rate of one anna on the annual value of the land comprised in the tenure, less a deduction calculated at � anna for every rupee of the rent payable for the tenure, which is Rs.. 525-2-6. According to the plaintiff''s calculation, cess is payable at one anna per rupee on Rs. 886-6-0 less deduction of � anna per rupee on Rs. 525-2-6. If calculated in this way, the cess comes to Rs. 38-15-9 a year. Learned Counsel for the plaintiff has also referred to Section 93, Cess Act and has contended that the valuation fixed by the Cess Revaluation Officer is open to revision by the Commissioner or the Board of Revenue, and cannot be interfered with by the Civil Court There is, in my opinion, no doubt that the status of the defendant, for the purpose of the Cess Act, must be considered with reference to the provisions of the Cess Act. As has been pointed out in numerous decisions, the expressions "cultivating raiyat" and "tenure-holder" have a special meaning in the Cess Act, which is different from the meaning attached to them in the Bengal Tenancy Act. The Cess Act defines a cultivating raiyat as meaning a person cultivating land and paying rent therefore not exceeding one hundred rupees per annum. The definition of the expression "tenure" shows that it includes every interest in land, whether rent-paying or not, save and except an estate, and save and except the interest of a cultivating raiyat. Therefore, a "tenure" is, more or less, a residuary interest, not being an estate nor the interest of a cultivating raiyat. On behalf of the defendant-appellant, stress has been laid on the words "paying rent" in the definition of a cultivating raiyat, and it has been contended that inasmuch as the defendant in this case pays rent which varies from year to year and may be less than one hundred rupees in some years, he must be considered to be a cultivating raiyat for those years in which he pays less than one hundred rupees per year. In my opinion, the definition of a cultivating raiyat as given in Section 4 should be read with Section 41, Cess Act which shows the mode of payment of local cess by a holder of an estate, by a holder of a tenure and by a cultivating raiyat. We are not concerned in this case with the holder of an estate. Sub-section (2) of Section 41, Cess Act shows the mode of payment of cess by the holder of a tenure. When speaking of the deduction which the holder of a tenure is entitled to, the expression used is "less a deduction to be calculated at one-half of the said rate for every rupee of the rent payable by him for such tenure." I have underlined (here italicized) the word "payable." Similarly in the case of a cultivating raiyat the expression used is "calculated at the said rate upon the rent payable by him." I have again underlined ( here italicized ) the word "payable." When the definition of a cultivating raiyat talks of "paying rent not exceeding one hundred rupees per annum," it can only mean the rent payable for the land which the person cultivates. The rent payable for the holding in our present case is Rs. 525-2-6; it exceeds one hundred rupees. In this view, it cannot be held that the defendant is a cultivating raiyat as per the definition given in the Cess Act.

There is another way of looking at the question. The definition of a cultivating raiyat does not envisage a case of varying rent, viz., a case where rent paid exceeds one hundred rupees in some years and does not exceed that amount in other years. Such a case must, therefore, come under the definition of a tenure which includes every other interest except an estate and the interest of a cultivating raiyat. In this view also the defendant is a tenure-holder for the purposes of the Cess Act.

There is, however, a much simpler answer to the contention raised on behalf of the defendant-appellant, which is provided by Section 93, Cess Act. The judgments on which the defendant relies are anterior to the Cess Revaluation. Exhibit 2, the cess revaluation schedule, shows that the defendant was treated as a tenure-holder for the purpose of valuation of his holding and the valuation so fixed by the Cess Revaluation Officer could be revised only by the Commissioner or the Board of Revenue, The civil Court cannot go behind it and must accept that valuation as correct for the purposes of the Cess Act. The effect of Section 93, Cess Act has been considered in several decisions of this Court, see Kesho Prasad Singh Vs. Ram Swarup Ahir and Others, and Brajn Behari Das v. Ram Narayan Rai AIR 1938 Pat. 362. The latter is a Division Bench decision, where it was observed as follows:

There can be no doubt that the civil Court has jurisdiction to grant relief in a case where the Cess Department has acted ultra vires and imposed liability for cess on income which is not subject to cess. Section 93 is no bar to such a suit; that is to say, while the section does not bar a suit to establish that the amount on which the defendants have been assessed, is not subject to the Cess Act at all, it does bar a suit in which the contention is that not that the Cess Department acted ultra vires but merely that its decision is wrong.

In the case before us the contention of the defendant is that the Cess Department was wrong in treating him as a tenure-holder, This the defendant cannot be allowed to say. He should have moved the Commissioner or the Board of Revenue for the revision of the valuation. Not having done so, he cannot ask the civil Court to revise the valuation fixed for the purposes of the Cess Act. Learned Counsel for the defendant-appellant has referred us to Abdul Hasan and Others Vs. Asghar Ali and Others, . This decision has been considered in Brajn Behari Das v. Ram Narayan Rai AIR 1938 Pat. 362 , and it has been pointed out that it does not in any way affect the decision of Ross J. in Kesho Prasad Singh Vs. Ram Swarup Ahir and Others, . Reliance has also been placed on the more recent decision in Sir Kameshwar Singh Vs. Janki Raman and Others, . This decision is, however, of no help to the defendant. The decision was given in a case in which there was originally one holding of 155 bighas with rent exceeding one hundred rupees: therefore, the holding was valued as a tenure in the revaluation proceedings; the holding was subsequently split up into four holdings with the consent and concurrence of the landlord; and since that time the rent in respect of each of the holding was less than one hundred rupees. In those circumstances, it was held that the defendants were cultivating raiyats within the meaning of Section 4, Cess Act. It was further observed that it was open to the landlord not to consent to the splitting up of the holding in which case cess would have been payable under Clause (2) of Section 41; but the landlord having given his consent to the splitting up could not then refuse to treat the tenants of the different holdings as cultivating raiyats. In the case before us nothing has happened after the cess re-valuation, at which time the defendant was treated as a tenure-holder for the purposes of the Cess Act. There has been no splitting up of the holding and the rent payable for it is the same as before. Therefore, the principles laid down in Sir Kameshwar Singh Vs. Janki Raman and Others, cannot apply to this case. I am, therefore, of the view that Section 93 is bar to the plea of the defendant that cess is payable by him as a cultivating raiyat.

For the reasons given above, I would dismiss the defendant''s appeal, namely, Appeal No. 4 52 of 1945, but without costs. The plaintiff''s appeal, namely, Appeal No. 59 of 1945, is allowed but without costs, and the decree of the Court of appeal below will be modified by allowing cess at the rate claimed by the plaintiff, namely, Rs. 38-15-9.

Manohar Lall, J.

I agree. I wish to make a few observations about the argument raised on the application of certain sections of the Cess Act.

The liability of the tenure-holder to pay cess is a statutory liability provided by Section 41(1), Cess Act which determines the amount and also the rate. Similarly the liability of the cultivating raiyat is determined by Sub-clause (3).

Great confusion is apt to arise and very often arises when it is not clearly borne in mind that the definitions of ''cultivating raiyat'' and a ''tenure-holder with which we are ordinarily familiar in dealing with cases under the Tenancy Act are widely different from the definitions given to these two familiar expressions in the Cess Act. This has been repeatedly emphasised by various decisions of this Court.

Is the defendant-appellant a tenure-holder, or a cultivating raiyat within the meaning of the Cess Act? It is admitted and indeed amply established that in the cess re-valuation proceeding this defendant has been described as a tenure-holder. The area of the land in his possession is given in the schedule and the annual rental which is payable by him as stated in his kabuliat i.e. Rs. 525-2-6 is also given under the appropriate heading towards the top. The contention of the appellant is that he cannot be, treated as a tenure-holder for the years in suit as on the findings of fact arrived at by the Courts below he is liable to pay rent at less than Rs. 100 per annum for those years.

The onus is on the appellant to prove that for the years in suit he should be treated as a cultivating raiyat. Now, has he discharged that onus? He says that he comes within the definition of a cultivating raiyat because for the years in suit he has been found to have cultivated only a part of the land comprised within the tenure so that he is liable only to pay rent at less than Rs. 100 per annum for each of the years in suit. In order to test the validity of this contention the peculiar terms of the lease under which the appellant holds have to be examined. This lease has been construed between the parties by the civil Court in a previous litigation. There it has been correctly held that although She lessee is liable to pay rent over Rs. 500, per annum as found in the document, but he is not liable to pay this entire sum if in any particular year he happens to cultivate a smaller area or rather if a smaller area only becomes culturable, and in that case he is to pay rent according to different rates for that portion of the land which he cultivates or becomes culturable if it falls within the superior kind from that which he cultivates if it falls within the inferior kind. The reason for this peculiarity is that the land is situated near the river and is liable to be flooded with water every year and thus a part of it may become unculturable. It was, therefore, provided that the defendant will be liable to pay rent at the rates mentioned in the document for the two kinds of land which have become culturable in she years in suit. These being the terms of the tenancy it follows, in my opinion, that the rent payable by the defendant is always over Rs. 500, per annum as has been fixed by the kabuliat although the rent which is actually paid by the lessee in and for a particular year may depend upon different circumstances. In the present case, therefore, the answer to the question as to whether the defendant is a cultivating raiyat or a tenure-holder depends not upon the (actual area which may be found to have been culturable in the particular years in suit, but upon the actual area which this particular tenant has a right to cultivate or which he ordinarily is expected to cultivate provided that by the operation of the physical laws of nature so much land was actually culturable in the years in suit. If the matter is looked at from this point of view, the contention of the defendant appears to me to be wholly untenable. It may also be observed that to accept the contention of the appellant would mean that he would be a tenure-holder in one year and a cultivating raiyat in another year although no change has occurred between him and his landlord as to the terms upon which he holds the lands comprised in the tenancy.

I do not think the defendant seriously contended that the provisions of Section 93, Cess Act did not prevent him from contesting the cess revaluation proceedings. If that was his contention, it is completely answered by the cases of this Court referred to in the judgment of my learned brother. But I rather gather his contention, was that after the cess revaluation proceedings it has been held in a decision of the rent Court and in a title suit between the parties that this defendant is liable to pay cess as a cultivating raiyat. It is indeed open to the defendant to urge that after the cess revaluation proceedings the situation has changed and that as between the landlord and himself he is now in possession of the same or a lesser area for which he is liable to pay rent at less than Rs. 100 per annum. This was the case in Sir Kameshwar Singh Vs. Janki Raman and Others, . But in the present case the situation remains exactly the same as it was when the lands comprised in the tenure were leased out to the defendant. No alteration has taken place and no fresh agreement has been arrived at between the parties. In one of the judgments relied upon, all that was held was that the lease was given effect to and that upon its proper interpretation the defendant is liable to pay rent on the terms already stated by me. In the second judgment relied upon, the Court did not decide the question but merely held that the defendant should pay cess as a cultivating raiyat. That judgment cannot be treated as res judicata. As the question does not appear to have been raised, no decision was arrived at by the Court--the Court merely decreed the rent for those years and added on the cess at half anna per rupee on the rental so decreed. Now that the question has been raised, it has to be decided, and this decision, in my opinion, should be given on the interpretation of the kabuliat and on the interpretation of Section 41 and the definition sections of the Cess Act. I agree entirely with my learned brother in the view which he has taken.

I have come across many cases where the landlords realise a reduced rent from the tenants for some years after giving a mafi, they remit the interest due, but they never remit the cess which is payable by the tenant on the reasonable plea that they cannot remit the amount of cess as they have either already paid the same or are liable to pay it to the Collector. Take a case where the defendant is a tenure-holder paying over Rs. 100 per annum but by some arrangement between him and the landlord he has been allowed a remission every year for some years or where he is entitled to remission on account of diluvion or temporary deterioration of the soil. Can it be successfully urged that such a defendant ceases to be a tenure-holder for those years within the meaning of the Cess Act on account of the conditions just mentioned? In my opinion, the answer is in the negative.

For these reasons, I am of opinion that the appellant is liable to pay cess as a tenure-holder as determined by my learned brother.